Fulfilling America's Promise: A Civil Rights Strategy for the1990's

About the Authors

773 i June 7,1990 FULFLUNG AMERICA'S PROMISE A CIVIL RIGHTS
SI'lUm FOR THE 1990s INTRODUCTION The U.S. Congress currently is
considering legislation that its proponents claim will help to
create equal opportunities f or blacks and other minorities and
reduce the racism that persists in America. Far from that, however,
the proposed Civil Rights Act of 1990 will preserve and expand
America's apart heid-like system of racial hiring quotas and do
nothing to promote the ec o nomic opportunities for what is
becoming a permanent under class of minor ity Americans.
Ironically, the plight of these poor is used to justiij the new
civil rights law, yet the remedies proposed do not address their
conc!ition. In stead, the racial quo tas encouraged by the Act at
best may benefit only edu cated and upper income minorities.

Despite the civil rights gains of the last 25 years, one-third
of the nation's black population remains in poverty and one-fourth
of all Hispanic Amen cans live in po verty. What is needed is a
civil rights bill that advances the op portunities of these and
other poor Americans view of how minority Americans can gain
equality of opportunity. Sponsored by Senator Edward Kennedy of
Massachusetts and Representative August u s Hawkins of California,
both Democrats, the bill offers 1960s-type solutions to a problem
that requires a progressive new strategy for the 1990s. To be sure
many of the civil rights strategies employed in the 1950s and 1960s
made cru cial strides toward e qual opportunity for minority
Americans.That civil rights movement and the landmark statutes it
achieved broke down barriers and won widespread support among
Americans. But many of the veterans of those early battles still
are locked into the thinking of t hat era.They focus on racial
quotas, preferences, and statistical-base racial balancing
mechanisms as Outdated Thinking. The Civil Rights Act of 1990
represents ouidated a weapon for advancing minorities, rather than
on crafting strategies to give minorit ies the basic tools needed
to take advantage of the opportunities hard won by Martin Luther
King and other leaders of the original civil rights move ment.

Fortunately, however, a new generation of minority Americans is
beginning to question the relevance t oday of those old
remedies.These Americans are proposing newsolutions to propel civil
rights beyond the old formula and into a new era of expanded
opportunity and-true equality of opportunity.The debate in Congress
challenges conservatives and liberals al i ke to fashion a civil
rights agenda that goes far beyond the outmoded approach of Ken
nedy/Hawkins Ending a Paternalistic View. What is needed are not
racial quotas and set asides, but an empowerment strategy that will
unleash the capacity of individ uals who have been excluded from
the rnainstream.This will require lawmak ers to view differently
those whom they wish to help. For too long govern ment in practice
has treated low-income Americans as people who do not have the
capacity to make choices to bett e r themselves. This paternalistic
view has had a devastating effect on minority communities because
it has en couraged entire racial groups to believe that they cannot
succeed without dis crimination in their favor and continuous aid
from government.That h a s spawned a generation dependent on
government, with low self-esteem and lit tle hope for effecting
change in their lives. With it has come broken families soaring
crime and school dropout rates, and shattered community
institutions that once played a vit al role in holding minority
communities together.

The liberal civil rights agenda now being advanced in Congress
perpetuates the myth that the poor and all minorities are somehow
handicapped and must be given special preferences and handouts to
succeed.Thi s approach neces sarily embraces racial quotas and the
massive social welfare programs that have failed to create
opportunities for the economically disadvantaged very different
premise: that low-income and minority Americans actually have
enormous unfill e d capacity for achievement. By removing
regulatory barriers to economic opportunity and creating an
environment in which these individuals are empowered to take charge
of their lives, conservatives believe Ihat -capaci_ty
for-achievement will be realized.

This conservative view of progress suggests a two-pronged civil
rights strat egy.The first prong is vigorous enforcement of civil
rights laws. Discrimina tion remains an all-too familiar fact of
life for many Americans. Government must prosecute cases of
discrimination against individuals to the full extent of the
law.TitleVI1 of the 1964 Civil Rights Act, moreover, should be
strength ened to include a remedy of damages against those who
willfully discriminate.

Building on this enforcement strategy, the c onservative civil
rights strategy would call for aggressive court and legislative
action to challenge modern-day Jim Crow laws that stifle minority
business development. Examples include the 1931 Davis Bacon Act,
which freezes out minority firms from gove r nment construction
contracts, and onerous occupational licensing laws for profes
Unfilled Capacity. The conservative vision of progress, however,
rests on a 2 sions ranging from cosmetology to child care. These
barriers to economic op portunity, seemingly neutral in their
impact on the races, actually dis proportionately harm minority
entrepreneurs trying to use the opportunities promised by the civil
rights statutes.These remaining legal barriers, more over, pose the
greatest hurdles to the poor the very p eople who have been left
behind by todays civil rights movement Attacking Quotasfhis
enforcement strategy also would attack racial quo tas that act as a
ceiling to .housing and educational opportunities for minori ties.
Strict adherence to racial and ethn i c composition ratios in
public schools, for example, has capped the number of minority
students who can at tend magnet schools, even when those schools
are operating far below capac ity.These and similar racial quotas
that limit the number of Asian Americ ans admitted to universities
should be challenged by all who genuinely believe in civil
rights.

The second prong of the conservative civil rights agenda is
individual em powerment to control ones own life. In many respects
this is the essence of civil righ ts and the key to true
independence. As Robert Kennedy stated in 1966, reliance on
government is dependence and what the people of our ghettos need is
not greater dependence, but full independence. Conserva tives thus
want to fulfill the promise of the ci v il rights movement by
pursuing a legislative strategy designed to remove
government-imposed barriers that stifle economic opportunities for
the poor. Such barriers prevent the poor from making such
fundamental decisions as where they will live and who wil l educate
and care for their children.

The conservative empowerment strategy calls for enterprise zones
in low income minority communities to reduce tax and regulatory
impediments now frustrating the entrepreneurial spirit of those
communities. It calls for a rejec tion of the public education
double standard that condemns poor, primarily minority students to
second-rate schools, by injecting competition into the American
education system. Parental choice and education vouchers for low
income families are needed to empower parents as consumers with the
ability to make choices in a market that now is open only to those
who are not poor.

This strategy also means vesting community groups with the power
and re sponsibility to deliver services currently managed by
bureaucrats. Public hous ing tenants , for example, should be
allowed to manage and eventually to own St. Louis, and Washington
D.C. Empowerment also means that government must make good on its
fundamental responsibility of protecting its law-abid ing citizens
from crime, creating an environ ment in which they can prosper.

Thus innovative ideas like a police ROTC for students from
low-income com munities can be an important element of the
conservative civil rights strategy their own housing-units,building
on the successes of such efforts inBos ton 1 Quoted from
Empowerment: A Vision Cor thc 199Os, Task Force on Empowerment,
House Republican Research Committee, U.S. House of Representatives
3 17 first articulated the critical connection between civil rights
and empower ment, proclaiming that any changes in civil rights law
must embrace a broader agenda of empowerment. As John F. Kennedy
did in 1961, Bush should issue an executive order that puts forth
his vision of an empowerment civil rights agenda. This executive
order should instruct the feder a l govern THE STATE OF CML RIGHTS
Since its origins in the American revolutionary era, the quest for
civil rights dways has meant securing for individuals the power to
control their own des tinies.The past quarter-century has witnessed
both major triumphs and seri ous setbacks in this quest.The civil
rights laws of the 1960s opened the doors of opportunity to
millions of previously excluded Americans in such crucial areas as
employment, education, voting, and public accommodations.

Indeed, Washington Post c olumnist Courtland Milloy, who is
black, has writ ten that black Americans are probably Americas
greatest success story. En slaved a little more than a hundred
years ago, there are now 2 million of them living affluently.
Milloy notes that between 1967 an d 1987 the number of black
households earning $50,000 or more grew from 212,000 to 764,000, an
2 Michael Novak, The Invisible Man, American Enterprise Institute,
On the Issue, from Forbes, February 19 1990 4 increase of 360
percent.The total income of Amer i ca's 28 million blacks is larger
than the gross domestic product of all but ten nations? Since the
mid 1960s, moreover, the number of African-American elected
officials has quad rupled. And black politicians now govern four of
America's six largest cities .

In recent years, however, the focus of many civil rights
policies has shifted from securing equal opportunity to securing
equal outcomes among racial and ethnic groups, through quotas,
set-asides, busing, and welfare. Though ad vocated as temporary
measu res necessary to undo rapidly the lingering ef fects of past
discrimination, these devices have grown increasingly en trenched!
Indeed, many "establishment" civil rights leaders5 demand adher
ence to this agenda as a civil rights litmus test!

Little Help for Disadvantaged. This agenda is destructive for
many rea sons, but the most damning indictment delivered by critics
spanning the philosophical spectrum from Charles Murray to William
Julius Wilson is that it hasn't worked? Sociologist Wilson, of the
Uni v ersity of Chicago, notes that while many blacks have enjoyed
economic progress in recent years, for millions of others "the past
three decades have been a time of regression, not progress." As
Wilson explains Rlace-specific policies although benefi cial t o
more advantaged blacks do little for those who are truly disadvan
tional Center for Neighborhood Enterprise, a grass roots
organization that promotes self-help solutions to local community
problems, "Affirmati.ve ac tion does not help the black dishwashe r
or the untrained black youth Adds Robert Woodson, President of the
Washington, D.C.-based Na 999 A 3 aid 4 See, e.g Clint Bolick,
Clianging Course: Civil Rights af the Crossroads (New Brunswick,
NJ.: Transaction 5 See, e.g. Clint Bolick, 111 Wiose Name? n ie
CivilRiglits Establishntenf Today (Washington, D.C Capital Research
Center, 1988 6 National Urban League President John E. Jacob, for
instance, asserts that "[tlhe goal of parity is the one constant
that must be shared by anyone who presumes to hold a leadership
position in the black community."

42. Wilson's dismal economic prognosis was largely confirmed by
the recent report of the Committee on the Status of Black
Americans. Gerald David Jaynes and Robin M. Williams, eds A
Coninton Desfiiiy (Washington, D.C National Aca demy Press, 1989 9
Robert L. Woodson Race and Economic Opportunity NfI Poliq Review
Series, National Center for Neighborhood Enterprise, 1989, p. 3
Books, 1988 P. 53-78 5 civil rights agenda that promotes racial
set-asides for the middle-class, writes Was h ington Post columnist
William Raspberry; is like demanding that the so ciety supply
aspirin for your uncle because your nephew has a headache. Isnt it
time to abandon this bait-and-switch game in favor of truth in
labeling?1 The Victims of Racial Politics The failure of
race-specific assistance programs to arrest the growing cleav age
between disadvantaged and more successful blacks is borne out by
census data.There has been as Harvard political economist Glenn
Loury has shown significant improvement in th e earnings of
employed black workers over the period 1940-1980.11 But, says
Loury, the average gains in black workers earnings have not been
enjoyed equally by all black workers. In fact, earn ings inequality
within the black population has increased durin g the last 25
years, and remains greater than income differentials among white
workers Fact: In 1959, the bottom 40 percent of black men earned 8
percent of the total earnings of all black men. By 1984 that bottom
40 percent earned only 4 percent of total e arnings. Conversely,
the top 20 percent of black men in 1959 earned 50 percent of total
blacbrnale earnings. By 1984 this same 20 percent earned 60 percent
of the total Fact: From 1970-1986, the proportion of black families
with incomes over 35,000 grew f r om 15.7 percent to 21.2 percent,
and the proportion with in comes over $50,000 nearly doubled, from
4.7 percent to 8.8 percent. Yet dur ing the same period, the
proportion of black families with incomes of less than $10,000 also
grew, from 26.8 percent to 30.2 percent.

What is the cause of such disparities? If racism were the
answer, it would present a barrier for all blacks. And as Loury
concludes, [E]mployment dis crimination is not a major factor.
Rather, he points out, such practical fac tors as educat ion
contribute significantly to income differentials among blacks as
well as between blacks and whites. Annual earnings of college-edu
cated black males, for example, rose by 6 percent relative to
whites between 1969 and 1984.The disintegration of the tra d
itional family among poor blacks, however, accounts for much of
this disparity: The poverty rate for black families headed by a
single mother is 50 percent more than four times the rate for
intact, two-parent black families. The median income of two-par e n
t black families now is 88 percent that of comparable white
families, and the-disparity-is-closing at a-rated -5-points-a year
13 10 Playing on White Guilt, Wasliirigfoti Posf, May 14, l!I90 11
Testimony of Professor Glenn C. Loury, before the Committee o n
Labor and Human Resources of the U.S.

89. Woodson OF. cit p. 11 6 Fact: Betwee n 1960 and 1988 the
percentage of black women aged 15-44 married with a spouse present
in the household declined from 51.4 percent to 29.1 percent. For
whites, the decline was 69.1 percent to 54.5 percent. Be tween 1960
and 1988 the percent of black child r en living with a black
married couple fell from 67 percent to 38.6 percent, while the
number of black chil dren living with a never-married person rose
by more than 1400 percent from 2.1 percent to 29.3 percent. By
1988,61.2 percent of black children were born to an unmarried
~0man.l Liberal solutions of quotas, forced integration, and other
race-based ap proaches to civil rights clearly do not empower most
blacks. Black men, par ticularly, are even more alienated from the
economic mainstream.The last 25 y e ars, for example, have
witnessed a pronounced downward trend in the num ber of black men
participating in the labor force. Fact: In 1962, almost 60 per cent
of young black males were employed, but by 1985 only 44 percent
were employed.15 The reason for th i s dramatic decline was not
that jobs disap peared in fact, it was a period of remarkable job
creation. Nor is racism the culprit. The principal destructive
influence was a burgeoning welfare system that subsidized family
breakups and nonemployment Victim I dentity. Liberal civil rights
policies also have had a more insidious effect on the economic
advancement of blacks. Shelby Steele, Associate Pro fessor of
English at San Jose University, has written that the prevalence of
ra cial quotas and preferences ha s ingrained in blacks an identity
of themselves as victims.This identity as victim, argues Steele,
who is black, perpetuates a sense of low-self esteem among blacks
and a feeling of powerlessness, which stifles individual initiative
and responsibility. Wri t es Steele Social victims may be
collectively entitled, but they are all too often individually
demoralized. Since the social victim has been oppressed by society
he comes to feel that his individual life will be improved more by
changes in society than by his own initiative. Without realizing
it, he makes society rather than himself the agent of change.The
power he finds in victimization may lead him to collective action
against society, but it also encourages passivity within his own
life Steele nota that - after the death-of Martin Luther King;the
civil rights movements message of equal opportunity was supplanted
by a focus of blacks as victims entitled to special reparations
from white society. The 1964 civil rights bill, writes Steele, was
passed on the u n derstanding that equal 14 Loury. op. cit 15
Novak, op. cit 16 Shelby Steele, Im Black, Youre White, Whos
Innocent, Hu/pen, June, 1989 7 opportunity would not mean racial
preference. But in the late 1960s and early 1970s, affirmative
action underwent a rem a rkable escalation of its mission from
simple anti-discrimination enforcement to social engineering by
means of quotas, goals, timetables, set-asides and other forms of
preferential treat ment.17 These policies remain the agenda of the
liberal civil rights establish ment RecentSupreme
Courtrulings,-however, maysignal a turning point for the future
direction of civil rights policy. In a series of decisions last
year,ls the Court called squarely into question the use of racial
quotas as well as the as sumptio n s on which race-conscious
measures are based.lg Yet old guard civil rights leaders and their
congressional allies reacted to these rulings swiftly and
predictably, condemning them and urging corrective legislation.
Sena tor Kennedy and Representative Hawk i ns introduced
legislation to overturn most of the rulings and further expand the
scope of the civil rights laws WHY THE KENNEDY/HAWKINS BILL FAILS
MINORITY AMERICANS Undergirding the Kennedy/Hawkins legislation is
the assumption that every significant dif f erence in statistical
outcomes among racial orl o,thnic groups is attributable to
discrimination and curable by quotasm This as sumption is flawed.
While discrimination remains a serious obstacle for mi norities, it
is not the primary barrier to opportuni t y afflicting the economi
cally disadvantaged. Observes the National Center for Neighborhood
Enterprises Woodson, Vague cries for peace, jobs, and freedom are
mean ingless when a permanent (and growing) underclass of more than
one-third of all black Americ a ns, unskilled and undereducated,
remains untouched by civil rights gains, the war on povert
increased black political power, and a mammoth social welfare
industry. Civil rights policies that fail to recog nize this fact
and to confront real obstacles to p rogress are doomed to repeat
the failuresof the past.

At the heart of the Kennedy/Hawkins bill are provisions that
will make it all but impossible for employers to defend themselves
against a claim of dis criminatory hiring pr actices. Under the
proposed law, a business that fails to h 17 Shelby Steele, A
Negative Vote on Afirmative Action, New York limes Magazine, May
13,19M 18-City ofliichntond-v.-JA. Cmson Co 1W S.Ct. 706
(1989)(striking down Richmonds minoritycontract set-a s ide program
Wards Cove Pockirtg Co. v. Antoriio, 1W S.Ct. 2115 (1989)(making it
less dificult for employers to defend employee selection practices
against discrimination charges that are based solely on statistics
without evidence of discrimination Mod11 v . Wk, 109 S.Ct. 2180
(1989)(allowing challenges to racial quotas contained in consent
decrees by those who are affected and Pottersoti v. McLeon Credit
Union, 109 S.Ct. 2362 (1989)(holding that the Civil Rights Act of
1866, which prohibits discrimination i n the making of contracts,
does not cover instances of racial harassment 19 See Clint Bolick,
The Supreme Court and Civil Rights: A Challenge for George Bush,
Heritage Foundation Backgroiiridcr No. 728, September 28,1989 20
See Bolick, Cliortgirtg Course, pp. 56-60 21 Woodson, op. cit p. 3
8 meet certain racial and ethnic percentages in the composition of
its work force must prove that such disparities are not due to
discrimination.This is a reversal of normal legal standards.
Usually, a claimant must prov e that a de fendant has violated some
legal standard in order to prevail. Under the pro posed
legislation, however, the claimant need only show that racial
hiring per centages have not been met, and the burden then shifts
to the employer to prove the absen c e of discrimination.Thus the
employer,is presumed guilty un less innocence is proved
Insurmountable Standard. In addition to this shifting of the
burdens, the I I legislation proposes another hurdle that will make
it impossible for an em ployer actually t o prove that he or she
does not discriminate. Under the Ken- I -I I nedy/Hawkins bill, if
the work force of a business fails to meet the prescribed racial
composition, the only way that an employer can rebut the
presumption of discrimination is by proving t hat his or her hiring
criteria bears a substan tial and demonstrable relationship to
effective job performance. This is an insurmountable legal
standard, and a reversal of the Supreme Courts 1989 ruling in Wards
Cove Packing Co. v. Antonio that a business need only show that a
challenged hiring practice serves, in a significant way, the
legitimate goals of the employer. Under the elevated hurdle
proposed by the Ken nedy/Hawkins bill, such reasonable and
non-racial hiring criteria as requiring a high school or college
diploma could fail to meet the substantial and de monstrable test
necessary to rebut a claim of discrimination. A company that merely
shows that it applies the same standards to everyone, regardless of
race, will be found guilty of discriminati on.

Faced with such hurdles, rational employers will turn to racial
quotas as the only reasonable means to protect themselves from
lawsuits. To avoid litiga tion, employers will have no recourse but
to hire a certain percentage of their employees based not on merit
or qualifications, but solely on the basis of race. Indeed, writing
in the weekly lawyers newspaper Legd Times, liberal columnist
Stuart Taylor, Jr. notes that the bill would pressure employers sur
reptitiously to use quotas to improve their sta t istics. This is
not a positive di rection for civil rights. As George Bush said in
his May 17 Rose Garden speech on civil rights, The focus of
employers in this country must be on pro viding equal opportunity
for all workers, not on developing strategies to avoid
litigation.

Presumption of Discrimination. Another adverse-impact of theKen
I nedy/Hawkins bill would be to establish quota ceilings on the
number of minorities employed in low-skilled jobs. One of the
issues in the Wards Cove case was a disparity in the companys work
force between the number of mi sitions. Under the proposed
Kennedy/Hawkins bill, such a disparity would create the presumption
of employer discrimination. The result: rather than hiring more
minorities for management level positions, many employers sim ply
would reduce the number of minorities employed in low-skilled
positions so as to avoid the unequal percentages that would result
in liability l I norities employed in low-skilled factory jobs and
upper-level management po 9 CONSERI d By its narrow focus on
statistical disparities and racial quotas, the Ken nedymawkins bill
would codify the racial divisions that continue to fuel racial
tensions between whites and minorities. Rather than equal
opportunity for all, the bill would offer r acial entitlements for
a select few. What is needed in stead is a positive civil rights
strategy geared toward empowering all individu als with the
independence they need to make the choices necessary to suc ceed,
The two key elements of this new civil Fi g hts agenda are vigorous
en forcement of anti-discrimination laws and progressing from the
old agenda of affirmative action to a new strategy of affirmative
empowerment ATIVES AND THE CIVIL RIGHTS LAWS The conservative civil
rights agenda must be more than opposition to racial quotas.
Conservatives must assert a strong affirmative commitment to enforc
ing civil rights laws and prosecuting discrimination. Civil rights
law enforce ment officials should take their lead from U.S. Appeals
Court Judge Clarence Th omas, who served as chairman of the U.S.
Equal Employment Opportunity Commission (EEOC) from 1982 to 19

90. Thomas demonstrated that vigorous civil rights law
enforcement need not mean quotas. He reorganized and streamlined a
previously ineffective agency; he established a policy of full re
lief for victims of discrimination (the EEOC previously settled for
quotas which employers were happy to accept); and he shifted the
agencys focus away from cases involving statistics to those
involving individual victi ms -the very people who could not find
help elsewhere. As a consequence, Thomas was able to secure more
relief for more victims of discrimination than ever before had been
obtained.

The new civil rights strategy should reject quotas as an unfair
and racial ly divisive remedy, and instead seek tough penalties
against discriminators and full relief for victims of actual
discrimination. This would require amending the employment
provisions of the 1964 Civil Rights Act to strengthen dam age
remedies, an approac h supported by ClarenceThomas, former Attor
ney General Edwin Meese, and former Assistant Attorney General
William Bradford Reynolds. In the desegregation context,
conservatives should push for monetary damages instead of busing.
Rather than merely reassig n ing stu dents to achieve racial
balance, damages in the form of education vouchers should be a
remedy available to successful plaintiffs. Currently, the preferred
judicial remedy in desegregation cases are such equitable remedies
as bus ing and racial quo t as.These forms of relief advance group
rather than findi vidual remedies. Yet as ClarenceThomas
demonstrated during his tenure at the EEOC, remedies that focus on
individual relief are possible and far more effective. A remedy of
education vouchers would s ecure better the goal of equal
opportunity by enabling parents to choose the best education
opportu nities available for their children 22 See Bolick, The
Supreme Court and Civil Rights, p. 8 10 Economic Barriers.
Aggressive enforcement of civil rights la w s also means pursuing
litigation and legislation to remove regulatory barriers to
economic opportunity. In the courts and legislatures, conservative
civil rights advocates should join with members of minority groups
to challenge on civil rights grounds su c h economic barriers as
the 1931 Davis-Bacon Act, which prevents minority firms from
securing government construction contracts. This law re quires
,that, inflated prevailing wagesn be paid on all government
construc tion contracts. In practice, this has m e ant that only
firms willing and able to pay uhion scale wages can secure
government construction contracts. Such firms typically are large,
established, white-owned businesses that can afford to pay inflated
wages. Smaller, more competitive minority firms that cannot absorb
such costs thus are prevented from securing the contracts, even
though they can perform the work at lower cost.The law also
discourages the hiring of low-skilled workers by establishing high
entry-level wages. The pre dictable combined i mpact of these
restrictions is the disproportionate exclu sion of minority
entrepreneurs and laborers, which was an explicit goal of the
Limiting Competition. Occupational licensing laws and regulations
that re strict the formation of new businesses also s hould be
confronted for their dis parate impact on minorities. Many of these
restrictions are unrelated to pub lic health or safety objectives,
and in fact often are promoted by the profes sions themselves to
limit competition. Like the Jim Crow laws of a n earlier era, these
laws often impede minority participation in professions and busi
nesses. Taxicab regulations, for example, strictly limit the number
of entrepre neurs in a business that otherwise would be easily
accessible to minorities. Li censing la w s also exclude from
professions those who are demonstrably quali fied, but who cannot
satisfy arbitrary and formalistic requirements. These li censing
restrictions commonly are prevalent in such entry-level trades and
professions as cosmetology, barbering , photography, stenography,
interior decorating, and pool cleaning.

More rigorous enforcement of civil rights laws also requires
confronting quota ceilings in education and housing. To achieve
racial balance in public schools and housing, government author
ities set rigid quotas that operate to exclude minorities. Example:
In California universities, Asian American stu dents are excluded
from admission because they are overrepresented among eligible
candidates for admission. Example: In Kansas City magnet s c hools,
black youngsters are denied admission so the school district can
hold seats empty for white students.25 These experiences illustrate
how race-based 23 See Congressional Record-House, February 28,1931,
pps. 6504-6521 24 See Dan C. Heldman, Ending Co l lege Admission
Quotas Against Asian-Americans, Heritage Foundation fieciifive
Meiiiomndiim No. 240, June 30,19889; Representative Dana
Rohrabacher, College Admission Quotas Against Asian-Americans: Why
Is the Civil Rights Community Silent? Hehrage Lechrre s No. 236 25
See Blacks sue over KC desegregation plan, nie Washirigton 7imes,
July 17,1989.policies, however well-intentioned, can ultimately
harm the very individuals they are purported to benefit Affirmative
Action ture, it is affirmative action Conserv a tives generally
have been perceived to be opposed to affirmative action. If
affirmative action means quotas such opposition is warranted. But
affirmative action need not be synony mous with quotas;
conservatives, therefore, should not be considered adver saries of
affirmative action as it was originally intended.

Affirmative action as practiced in the mid-1960s recognized that
many indi viduals were ill equipped, for reasons of past
discrimination to take advan tage of the equal opportunities
secured to th em for the first time by the newly enacted civil
rights laws. Affirmative action thus meant providing tools to en
able those who had been held back by discrimination to compete
effectively in the market. It did not mean racial hiring
quotas.

Origin of a Term. The term first was used by John F. Kennedy in
his Execu tive Order No. 10925, issued in 19

61. As Hoover Institution economist Thomas Sowell has noted,
Kennedys order specifically provided that affirma tive action was
not intended as a system of raci al quotas or hiring prefer ences.
Instead, it was an effort to disseminate information about federal
jobs to encourage previously excluded groups to apply, and to
insure fairness in hiring and promotion regardless of race. Thus,
Kennedy ordered federal co n tractors to take affirmative action to
ensure that the applicants are em ployed, and that employees are
treated during employment, without regard to their race, creed,
color, or national origin.26 Senator Hubert Humphrey, the Minnesota
Democrat and archi t ect of the Civil Rights Act of 1964, also took
pains to distinguish affirmative action from racial quotas. During
Senate debate on the civil rights bill, Humphrey instructed his
colleagues that the bill does not require an employer to achieve
any kind of r acial balance in his work force by giving
preferential treatment to any individual or group. But Thomas
Sowell recounts that the original meaning of affirmative action, as
a general attempt to inform and recruit applicants from groups long
excluded from e m ployment and other opportunities, quickly gave
way to its current meaning- choosing If one term exists in the
American lexicon that conservatives need to recap among applicants
on the basis of-numerical-group results The firm opposition to
racial quotas e x pressed by most liberals in the 1960s was well
founded. Quotas (sometimes called goals and timetables) could I I i
26 Thomas Sowell, Civil Riglifs: Rlietoric or Reality New York:
William Morrow Company, Inc., 1984) p. 39 27 hid 28 Thomas Sowell,
Weber and Bakke, and the Presuppositions of Afirmative Action, in
W.E. Block and M.A.

Walker, eds Discnriiinatiori, Afimiative Acfiori, arid Equal
Oppomtriity (Vancouver: The Fraser Institute 1982), p. 61 12 not
accomplish the original -and still salient objectives of
affirmative ac tion. All quotas do is to redistribute opportunities
as part of a zero-sum game: every persons gain means anothers loss.
Quotas, moreover, do not help the economically disadvantaged gain
the skills necessary to compete ef fectively.Thus affirmative
action comprised solely of quotas has aided better qualified
minority candidates while not addressing the real-world needs of
people outside the economic mainstream As William Julius Wilson
argues future affirmative action must consist of effo r ts targeted
to truly disadvan taged individuals regardless of their race or
ethnicity CONSERVATIVES AND EMPOWERMENT The second element of a new
civil rights agenda is individual empower ment. This empowerment
means giving individuals the opportunity to re a lize their
potential and achieve economic independence by giving them the
power to choose the conditions under which they live such as how
their family will be educated and where they will live. Liberal
social welfare programs do not empower the poor. Rat h er they
empower government and an industry of so cial service providers
that prospers by managing the lives of the poor.The conservative
idea of empowerment, by contrast, derives from the movements roots
in market economics and classical liberalism -power not as control
over others but as the freedom to control ones own affairs, the
essential in gredient of liberty.

A civil rights strategy based on empowerment focuses on enabling
individu als to choose how they will improve their condition.The
aim is to he lp low-in come Americans by expanding opportunities
rather than by merely redistrib uting them.The impetus for such
efforts is not the coercive power of govern ment, but consumer
choice in the market.To achieve empowerment, the new civil rights
strategy m u st confront remaining systemic obstacles that prevent
individuals from controlling their own destinies. At least four
such obstacles exist: stifling regulation of entrepreneurial
opportunities, poor public schools the welfare system, and crime
All of thes e barriers disproportionately bur den people outside
the economic mainstream, who disproportionately are mi
norities.

An empowerment strategy to unlock the pent-up capacity of
lower-income minority Americans requires many actions on several
fronts. Among t hem 1) Remove obstacles to entrepreneurs. Economic
liberty is a fundamental civil right. Yet this liberty to pursue a
livelihood free from excessive or arbi trary interference is the
for otten civil right.This right was destroyed by the 1873
Slaughter-Hou s e cases in which the Supreme Court ruled
erroneously that economic liberty was not included among privileges
or immunities of citi SO 29 Wilson, op. cit p. 117 30 83 U.S. 36
(1873 13 zenship protected by the Fourteenth Amendment. As a
consequence, entre p r eneurial opportunities are burdened by a
pervasive array of regulations at every level of government, from
the 193 1 Davis-Bacon Act and federal mini mum wage laws to local
occupational licensing laws and government-con ferred business
monopolies.These la w s, most of which were enacted not to promote
public health or safety but to limit competition, stifle the
tradition of bootstraps capitalism that is Americas beacon to the
enterprising poor. In es sence, these restrictions cut off the
bottom rungs of the e conomic ladder, so vital to the poor and
those who have suffered discrimination, thereby destroy ing
traditional methods for upward mobility?l Conservatives should
champion an Economic Liberty Act, which would re quire governmental
entities to limit regul ations restricting entry into trades or
businesses to demonstrable public health, safety, or welfare
objectives.

Conservatives also should challenge as civil rights violations
the most arbi trary and oppressive economic regulations?2 In this
way, conservat ives not only would help complete the legal work of
the original civil rights move ment, but would open the most
important door to economic independence self-employment and
business creation 2) Introduce parental choice into education.
Education is the ke y to prog ress. It is the great equalizer of
the races, the most powerful tool for eliminat ing racism. But
interposed between precious educational opportunities and those who
need them the most stand Americas often substandard public schools.
And the grea t est number of victims of that system are those who
have no other choice -the inner city schoolchildren whose
opportunities for advancement are crushed at schools that seem
answerable to no one. Minori ties disproportionately are the
victims of Americas di s mal public school per formance. Dropout
rates for black and Hispanic students exceed those for whites,
especially in urban areas. In the Chicago public schools, for
example the 1988-1989 school year dropout rate for whites was 13.9
percent, com pared with a 23.3 percent rate for Hispanics and a
60.9 percent rate for bla~ks.3~ These young dropouts may in one
sense be making a rational 31 See Bolick, Cliunging Course, p.
94104 32 Landmark Legal Foundations Center for Civil Rights last
year successfully chall e nged a District of Columbia ordinance
prohibiting street corner shoe shine stands, and is currently
challenging Houstons boat industry 33 Chicago Public Schools, Board
of Education. Chicago defines a dropout as any student, sixteen or
older who has been r e moved from the enrollment roster for any
reason other than death, extended illness, graduation or completion
of an equivalency program. Also included are transferring students
whose records have not been requested by another public or private
school. anti - jitney law and-a-Nationalpark-Service
-regulation-that-has destroyed the-nativeVirgin-Islander-charter 14
choice: why stay in a substandard public school? But the tragedy is
that unlike individuals of moderate and upper incomes, these low
income students a nd their families have no opportunity to transfer
to better schools consum ers with a choice of schools, by providing
to parents a portion of the dollars spent on schooling in the form
of a tax credit or voucher to purchase the edu catim thatbest
-suits t h eir-childrenkneeds-Studies show that choice and corn
petition.in education work, particularly.for those who have lacked
the most basic educational opportunities.34 Moreover, polling shows
that vouchers are especially popular among inner city minority pare
nts? Returning to parents choice of, control over, and
responsibility for the education of their children is the first
step in expanding educational opportunities.

The successes of educational choice initiatives in such states
as Minnesota and in low income communities, like East Harlem, New
York, should con tinue to be highlighted and serve as a model for
expanded efforts. Conserva tives, too, should craft educatio n al
empowerment strategies that support and build on such educational
voucher plans as that achieved in Milwaukee, Wis consin, owing to
the efforts of State Representative Annette Polly Wil liams, a
black Democrat who represents low-income inner city const i tuents
3) Make welfare a ladder, not a permanent crutch. The welfare
system has fueled a self-perpetuating cycle of dependency, which
has influenced minori ties disproportionately. Intended as a
temporary helping hand in the case of the able-bodied the we l fare
system not only has encouraged millions to re main on its rolls,
but also in most instances has rewarded destructive behavior and
penalized those who sought to become independent. Example: if a
father walks out on his family, they become eligible for welfare If
instead of leaving he takes a low-paying job to try to fulfill his
responsibility, the family often is financially worse off America
needs to empower low-income minorities and others The welfare
system is particularly damaging to minorities bec a use many of
these families are at the margin, where welfare is an attractive
option. More over, the official leadership of the black and
Hispanic communities has added to the problem by urging government
to increase benefits for those on 34 See Clint Boli c k-A-Primer on
Choice in Education:-Part I-=How Choice Works, Heritage-Foundation
Backgrounder No. 760, March 21,1!)90 35 Alec M. Gallup, The 18th
Annual Gallup Poll of the Publics AttitudesToward the Public
Schools, Phi Della Koppun, September 1986, pp. 5 8,

59. A 1989 Gallupphi Delta Kappan poll found that 67 percent of
non-whites favor educational choice 15 the rolls, while doing
little to support proposals to reward those who strive to become
independent.

The federal government should encourage economic emancipation by
re ducing dependency on welfare and rewarding those who work.This
strategy requires a major reform of the welfare system and
anti-poverty programs to encourage independence and reward those
who take their responsibilities se riously;.Amon g the key reforms
needed Expand the Eamed IncomeTa Credit, which supplements the eam
ings of very low-paid workers through the tax c0de.3~ This would
reward work, encourage many on welfare to climb the ladder of
employment, and en sure that families would m o ve out of poverty
if they joined the work force Make some form of work mandatory for
all welfare programs serving the able-bodied Attach a portion of
the earnings of all absent fathers, married or un married, if their
family is on welfare. If the father c l aims to be unemployed
require him to enroll full time in a government work program
Encourage home ownership among the poor through "urban home
steading2rograms, and an acceleration of tenant management of
public housing Enact "enterprise zone" legislation , which would
reduce tax and regu latory barriers to job creation in the inner
city 4) Crack down on Crime. The new civil rights agenda should
emphasize the most fundamental of civil rights: freedom from crime.
Personal security is the primary justificatio n for government.
Government, however, is failing to protect its law-abiding minority
citizens against crime.

Crime falls disproportionately on minorities, creating an
additional barrier to those striving for econoinic independence and
social responsibilit y. Black households in 1988, for example, were
60 percent more likely to be burglar ized and three times more
likely to be robbed than white households. Black households suffer
more than twice the number of motor vehicle thefts and al 36 See
also, Stuart M . Butler, "Razing the Liberal Plantation: A
Conservative War in Poverty in Natioiral Review, November 10,1989,
p. 27; Stuart-M. Butler Welfare in Charles I Heatherly and
BurtonYale Pines eds Mandate For Leadership 111: Policy Strategies
for flre 1990s (Wa s hington, D.C The Heritage Foundation 1989) p.
253; Stuart M. Butler and Anna Kondratas, 0111 of the Povetry Tmp
(New York: The Free Press, 1987 37 See Stuart M. Butler The Peace
Dividend It Belongs to the People, Not Congress Heritage Foundation
Backgroun der No. 752, February 9,1990 38 See John Scanlon Pcople
Power in the Projects: HowTenant Management Can Save Public
Housing,"

Heritage Foundation Backpitnder No. 758, March 8,19!lO 16 most
65 percent more incidents of aggravated assault than whites? The ro
b ability of being murdered is six times greater for blacks than
for whites.His panics, too, are far more likely than whites to be
victims of crime. From 1979 1986, for example, Hispanic Americans
were victims of violent crime at a rate twice that of non- H
ispanics.4l If conservatives and the inner-city poor can make
Gommon cause on any issue,-it should be-crime Strong antiscrime
measures directed toward urban centers, along with meaningful
protection of victims rights, form the founda tion of an effort to
better secure vulnerable individuals in their persons and their
property. Creating a crime-free environment in poor communities
will require several changes in the law to favor the victim over
the victimizer.

Among them: victims rights laws that compel cri minals to make
restitution to their victims, and require prosecutors to take the
victims interests into ac count in sentencing and probation.
Government also should reprioritize its law enforcement strategy in
poor communities. Law enforcement should focu s on preventing and
prosecuting crimes against persons and property in the ghettos, and
increasing penalties for such crimes.

Ridding Americas minority communities of the source of crime
also will require empowerment strategies to involve communities in
th e fight. One idea that merits study is a proposal current1
before Congress to create a po lice ROTC program for poor
communities.

Under the plan, students would receive college tuition in
exchange for serving on the police force of their community after g
raduation. Such addi tions to urban police forces would free more
officers to perform such vital functions as foot patrol on the
streets of poor communities J2 WHAT GEORGE BUSH SHOULD DO
Obviously, George Bush can do a great deal to advance a
conservative strat- egy on civil rights one that will do far more
to advance civil rights than the Kennedy/Hawkins legislation. He
enjoys enormous popularity among both white and minority
Americans.The time is ripe for a Bush-led civil rights strategy
that would build on the foundation laid in the 1960s.The President
thus should draw on his popularity and credibility by restoring
momentum to a quest for civil rights that has strayed off course
for the past generation. Al ready,-Bush hastaken an important step
in-this-d i rection with-his May-17 Rose Garden speech on civil
rights. In that ground-breaking speech, he vowed to veto any civil
rights bill that would promote racial quotas, and he re 39 See
Joseph Perkins, ed A Conservative Agenda For Black Americans
(Washington, D.C The Heritage Foundation 1987,1990) pps. 31-32 40
Bolick, Cliarrging Coiirse, pp. 116-118 41 Hispanic Victimization,
Bureau of Justice Statistics, January 1990 42 S. 1299, The Police
Corps Act of 19

89. Sponsors include Republican Senators Specter, Hei nz, Rudman
Coats, and Lott. Democrats include Senators Sasser, Bradley,
Lieberman, and Dodd 17 defined civil rights to include empowerment
strategies for the poor. Next, the President should 1) Veto the
KennedyMawkins bill. To sign into law a civil rights bill that
promotes racial quotas would be to surrender to racism. And to sign
a civil rights bill that fails to include empowerment initiatives
for the poorwould ig nore the civil rights of those who are
struggling the most.The Kennedymaw kinsbill champio n sa failed
policy agenda and does little to solve the most pressing civil
rights problems. If the bill passes Congress, Bush should veto it
and immediately shift the terms of the debate from quotas to
empowerment 2) Issue an Executive Order on Empowerment. In 1961
President John F.

Kennedy issued Executive Order 10925 that mandated affirmative
action throughout the federal government. Now, nearly three decades
later, George Bush should issue a new executive order building on
Kennedys vision and propelling g overnment into a new era of civil
rights action.

This executive order should require all federal agencies,
departments, and offices to review existing policies and
regulations and eliminate those that sti fle the economic
empowerment of minorities. Like K ennedys executive order, Bush
should require the federal government to take affirmative action to
recruit minorities and also to break down barriers to their
economic lib erty. Bush should order the federal government to
restructure affirmative ac tion to encouiage empowerment efforts
aimed at increasing human capital and removing obstacles to the
economically disadvantaged.

The Bush executive order also should require that every new
government regulation be accompanied by an Empowerment Impact
Statement t hat ad dresses how the regulation would help to empower
low-income Americans to manage their own affairs and attain
economic liberty 3) Establish a Commission on Economic Mobility. In
his 1961 Executive Order, Kennedy established the Presidents
Committee o n Equal Employ ment Opportunity to scrutinize and study
employment practices of the Gov ernment of the United States, and
to consider and recommend additional af firmative steps which
should be taken by executive departments and agencies to realize
more f u lly the national policy of nondiscrimination Bush like
wise should appoint a presidential commission to examine
contemporary ob stacles to minority opportunities, and to recommend
within a specified time period-legislation designed to eradicate
those obst ac1es;This effort should be similar to that which
preceded the development of the Age Discrimination in Employment
Act of 19

67. By establishing this Economic Mobility Commis sion Bush
would lay the groundwork for opening far more opportunities for
economi cally disadvantaged minorities than would the
Kennedymawkins bill I I 4) Strengthen Damage Provisions of the
Civil Rights Act. Under the Civil Rights Act of 1964, an employer
found guilty of-discrimination need only pro vide a job and back
pay to the aggr i eved party.This penalty is not sufficient to
deter future discrimination. To remedy this, Bush should propose to
Congress 18 amendments to the law to allow recovery of treble
punitive damages against employers who willfully or persistently
violate the law 5) Propose a Comprehensive Welfare Reform. Congress
in 1988 enacted the Family Support Act. Touted as a major reform of
the welfare system that would reduce welfare dependency, the
legislation in fact is little more than an expansion of existing
programs. Moreover, a Congressional Budget Office analysis-of the
statute predicts that itwill-actually add people to the welfare
rolls.

Bush should explain to Americans that there will be no progress
in the war against poverty until there is a change in the strategy
used to fight the war. He should assemble a cabinet-level task
force, led by Housing and Urban Devel opment Secretary Jack K e mp,
to develop a comprehensive series of welfare reforms to promote the
empowerment of poor Americans 6) Coordinate Empowerment Efforts.
The beginning of an empowerment infrastructure already exists. In
addition to public policy organizations dedi cated t o self-help,
Secretary of Housing and Urban Development Jack Kemp and Education
Secretary Lauro Cavazos are pushing empowerment strategies in their
agencies. In Congress, Representative Steve Bartlett, the Texas Re
publican, has formed an empowerment caucu s comprised of
conservative and moderate Republicans. And the moderate Democratic
Leadership Council last month endorsed a policy plank calling for
equal opportunity rather than equal results. These developments
reflect a growing determination among conser vatives to confront
civil rights issues, and a growing receptivity to what
conservatives have to say.

Outside of Congress, organizations and individuals are showing
what can be accomplished by poor Americans if they are given the
opportunity to use the cap acities they have. The public housing
tenant management movement for example, has brought dignity and
hope to dozens of once crime-ridden and blighted projects. An
education reform movement has spawned more than 300 new black
independent schools, most of t hem created by parents and community
groups in poor neighborhoods. Robert Woodsons National Center for
Neighborhood Enterprise has helped to highlight the successes of
numerous additional empowerment efforts nationwide, and provided
techni cal assistance t o self-help groups in minority communities.
And the National Association of the Southern Poor, headed by Donald
Anderson, has carried the self-help message to rural Southern
communities, sparking a rejuvenation of formerly crime-ridden and
depressed commu nities.

George Bush needs to draw greater attention to the movement for
minority empowerment. He needs to give this movement at least equal
standing in the debate over civil rights, and to instruct agency
officials to do likewise. As long as the perception exists that
only minority leaders espousing the tired liberal agenda are
legitimate spokesmen for black and Hispanic Americans, the eco
nomic emancipation of these groups will be painfully slow 7) Repeal
the Davis Bacon Act. The 1931 Davis Bacon Act is t h e federal
equivalent of local Jim Crow laws that prevent minorities from
competing for 19economic opportunities. The laws requirements that
federal construction contracts pay the local prevailing wage
inflates wage rates.The result: many small minority fi r ms that
cannot afford to pay such inflated rates are excluded from
government construction contracts. The law also discriminates
against minority tradesmen who are willing to work for less than
union wages. In fact discriminating against black workers see m s
to have been one of the reasons for passing the 1931 law. Said
Alabama Congressman Miles Allgood during the February 28,1931,
floor debate on the bill, That contractor has cheap colored labor
and it is labor of that sort that is in competition with whit e
labor This bill has merit it is very important that we enact this
mea sure.

Despite its devastating impact on black firms and tradesmen, and
its effect of increasing federal construction costs by $1.5 billion
annually, the 60-year old Davis Bacon Act rem ains 1aw.The reason:
Congress refuses to abolish it out of fear of offending organized
labor. George Bush should launch a cam paign to convince Congress
to repeal the Act. As part of this effort, he should instruct Labor
Secretary Elizabeth Dole and other appropriate executive branch
agencies to conduct a thorough examination of the Acts impact on mi
norities. Bush should make repeal of the Davis Bacon Act the
centerpiece of his civil rights strategy to eliminate the remaining
vestiges of Americas Jim Crow laws 8) Require that Congress be
Subject to Civil Rights Laws. Congress rou tinely exempts itself
from the laws it passes, including the nations major civil rights
statutes. Although the executive branch is subject to the
provisions of the 1964 Civil Righ t s Act, Congress is not. Thus
the 37,000 employees of the legislative branch are without the
civil rights protection guaranteed to all other Americans.This has
led some observers to describe Congress as the last plantation.
Undeterred, however, Congress is attempting to exempt it self from
new civil rights laws. The Kennedy/Hawkins bill, for example, fails
to require that Congress comply with its provisions.

George Bush, in his May 17 Rose Garden speech, called. on
Congress to apply to itself all existing and proposed civil rights
1aws.This is sound policy.

Bush should hold Congress to that standard, and refuse to sign
any civil rights bill that fails to subject Congress to its
provisions 943 43 Congressional Record House, February 28,1931, p.
6513 20 CONCL USION In his February testimony before the Senate
Labor and Human Resources Committee, Harvards Glenn Loury summed up
the current Civil rights chal lenge: Today the nation faces a
challenge different in character though perhaps no less severe in
degree re v olution. It is important, though, to be clear about
just what that challenge is, and what it is not.The bottom stratum
of the black community has compelling problems which can no longer
be blamed solely on white racism, which will not yield to protest
mar c hes or court orders, and which force us to confront
disquieting aspects of lower class black urban society. The
profound alienation of the ghetto poor from mainstream American
life has continued to grow worse in the years since the triumphs of
the civil r i ghts movement, even as the successes of that movement
has provided the basis for an impressive expansion of economic and
political power of the black middle class. Finding ways to
effectively address the problems of the inner-city poor, of 41
races, is th e challenge which confronts us today I than that which
occasioned the civil rights The abandonment of employment and
educational objectivity and the re flexive use of quotas exacerbate
racism and fail to address the serious prob lems faced by Americas
trul y underclass. What is needed are efforts to con front
remaining obstacles so that minorities can take advantage of the
oppor tunities secured by the civil rights laws. The economic
barriers separating mi norities from the American mainstream are
the type o f barriers that affirma tive action originally was
intended to overcome: practical obstacles, some the result of
discrimination and some not, that prevented individuals from sew
ing the opportunities promised by civil rights laws. By pursuing an
affirmativ e action strategy of redressing problems of economic
mobility and human capi tal development I the e unfinished business
of the civil rights movement can be completed role in the civil
rights debate, acting as opponents to civil rights or passive by
stande r s while liberals dictated the terms of the debate. Many
civil rights poli cies of the past quarter century have failed to
aid the most disadvantaged indi viduals in our society. These
policies also have perpetuated racial divisions Conservatives since
the 1960s have consigned themselves to a marginal 44 Loury, op. cit
21 among Americans. This dismal status quo can change only if
conservatives re claim the moral high ground and assume a positive
leadership role in civil rights issues in the coming decade. T his
leadership can be achieved by pursu ing a strategy of vigorous law
enforcement and individual empowerment.

Prepared for The Heritage Foundation by Clint Bolick Director
Landmark Legal Foundation Center for civil kights and Mark B. Liedl
Director of Special Projects The Heritage Foundation A !i 22